Ofcom continues to make progress against its roadmap for the implementation of the Media Act 2024 (Media Act), and has now released a consultation into the principles and methods that it will apply when making recommendations to the Secretary of State as to the services which it considers should be designated as ‘Regulated Television Selection Services’.

The line that Ofcom is required to draw between a Television Selection Service and a Regulated Television Selection Service is important as it defines which services will be subject to the potentially onerous availability and prominence obligations. This consultation provides further insight into how Ofcom intends to draw that line. Whilst the additional information provided is helpful, there are clear challenges around data and measurement as well as identifying who within the supply chain should fall to be regulated. 

Any providers of relevant selection services – in this case the software which enables content on smart TVs, streaming sticks and/or set top boxes, to be presented to and navigated by a user – should carefully consider Ofcom’s proposed principles and methods to ensure they are fair, proportionate and feasible.

Why does this matter?

The consultation is important for two reasons: 

1. The Media Act gives Ofcom a pivotal role in applying the definitions of Television Selection Services (TSS) set out in the Media Act, and recommending the exact services or category of services which it recommends the Secretary of State designate as a Regulated Television Selection Service (RTSS). This consultation gives further insight, and asks for industry engagement, into the methodologies it proposes to implement when making those recommendations, and it is important that these are fair, robust and effective in delivering against the legislation.
2. Whether a TSS is designated as an RTSS is consequential. RTSS will form a new category of regulated service, falling under Ofcom’s purview for the first time. Designation as an RTSS will mean that these previously unregulated service providers will be required to comply with potentially stringent obligations to ensure availability and prominence of certain PSB apps and content. As we heard during the pre-legislative scrutiny of the Media Bill, providers of an RTSS will likely face ongoing compliance costs and disruption to their existing business models.

What are TSS and RTSS under the Media Act – a recap

TSS are defined in the Act by reference to their role in enabling viewers to navigate, select and watch programmes. It is important to note that a TSS is not the hardware that a viewer access TV content through – for example the smart TV, streaming stick or set top box (referred to as Internet Television Equipment (ITE) in the Media Act) – but the underlying software platform installed on the ITE. That software will normally encapsulate both:

• the operating system - which will drive the way in which content is made available or pushed to a user via search, recommendations and voice assistants, often algorithmically; and also 
• the user interface - which will define the way in which content is presented to a user, for example via tiles, content rails, programme guides and home screens.

It is these software systems that the Media Act targets as TSS. However, the Media Act does not propose to subject all TSS to regulation. Instead, it sets out a framework by which Ofcom will prepare a report recommending either individual providers of TSS, or categories of TSS which will be considered and, ultimately, designated as RTSS by the Secretary of State.

Why are the principles and methods important and what is Ofcom proposing?

Where Ofcom prepares a report for the Secretary of State, it must assess key indicators (set out in section 362AG of the Media Act) to decide whether it considers a TSS, or a category of TSS, should be designated as an RTSS. Those key indicators, and the proposals that Ofcom are making, are as follows:

• The number of users of a particular TSS and whether that number is ‘significant’.
  • Ofcom notes that the fact that multiple people within a household may share a TV, or that multiple TSS may be used by one person, means that accurate data for number of users per TSS is not readily available.
  • Instead, Ofcom intends to utilise a proxy to assess the number of users of a particular TSS. That will be based on a dataset covering total users of all TSS, collected according to consistent methodology to ensure fairness across providers. For the first report, Ofcom is proposing to use ‘the number of TSS installed on ITE devices in UK homes’ as a suitable proxy. This would allow designation on the basis of those TSS operating on ‘[x] million units of ITE’, for example. 
  • Little further guidance is given on the threshold for ‘significant’, except that it must be proportionate to the aim of ensuring that public service content is made available and easy to access to “the overwhelming majority of the population”. Ofcom notes that whilst ‘significant’ will ultimately be based on an objective measure, the threshold may change over time in response to market conditions. Further fragmentation may for example lower the threshold, whilst consolidation could increase the threshold.
  • It is also made clear that there will be scope for Ofcom to consider other relevant factors, and so even if a TSS meets a threshold there could, in theory, be reasons for Ofcom to decide to not recommend designation.
• The manner in which the service is used.
  • Ofcom notes that designating a TSS which may be used by a significant proportion of the UK population, but which is not actively used could be disproportionate. For this reason it proposes to take account of active usage of a TSS. It is not however clear how they intend to overcome the clear data limitations, except that they reference the use of modelling or relying on estimates of how regularly or for what duration a particular TSS is accessed.
  • Importantly, Ofcom does note that a different approach may be appropriate for different ITE. This means that a TSS for use on a streaming stick, which could in theory have a high number of non or less active users than a smart TV, could have a different approach applied and (again, in theory) might escape designation even if it otherwise meets the ‘number of users’ threshold.
• Whether the service is capable of functioning as a RTSS, including any necessary modifications.
  • This is a nod to the legacy devices/versions issue that was raised during the pre-legislative phase of the Media Bill. Providers of ITE and TSS noted that there will be certain technical limitations which would prevent it from being able to make available the designated public service content – including for example compatibility of certain PSB apps. For TSS providers there will also be versions which are no longer actively supported and updated, meaning those technical limitations are not able to be easily overcome.
  • In acknowledging this, Ofcom notes that designation of a TSS may need to carve out older versions, for example by setting a qualification date based on when the TSS first became available in the UK.
• Any other matters Ofcom considers likely to affect these issues.
  • Whilst this test is a clear ‘catch all’ for Ofcom under the Media Act, the consultation does give some interesting insight into the types of alternative matters which might be relevant – including use across different audience groups, growth projections for use of a certain TSS, or market factors contributing to the way in which public service content is accessed. This is in theory helpful flexibility to try and keep up with wider market forces, but it will be interesting to see the extent to which Ofcom would consider using this part of the Media Act to override or undermine the other clearer statutory bases for designation, at least without further industry consultation.

Responding to the consultation – the key remaining issues

Whilst Ofcom’s proposals are not particularly surprising, there are a number of key takeaways which providers of TSS should carefully consider:

• ‘General control’ over the TSS will be important

Ofcom notes in the consultation that there are a variety of different commercial arrangements at play. Many ITE run on a proprietary TSS – such as Samsung and LG smart TVs, which are powered by Tizen OS and WebOS respectively, or Sky Stream, Chromecast and Amazon Fire Sticks which all run on the relevant providers’ proprietary operating systems (Sky Entertainment OS, Google OS and Fire OS). However, some ITE license in third party TSS – the example given by Ofcom being Sony smart TVs which run on Google OS. The Media Act only provides for one provider of a TSS, and so in the case of a licensed TSS it will be necessary to identify who has ‘general control’ over the way in which that service presents TV apps to its users. This ‘general control’ test is not something covered in this consultation, but could be of vital importance in determining whether, in the example of the Sony smart TVs given by Ofcom, Sony or Google would be the designated TSS.

• Lack of certainty over the ‘significant users’ threshold

Ofcom’s reluctance to identify a figure – or even a ballpark figure – for the significant users threshold will not give providers of TSS much certainty. Ofcom’s further desire to retain flexibility over that threshold suggests certainty will be difficult to come by even after the initial round of designations.

• Data availability, measurement and proxies

Crucial to Ofcom’s ability to deliver on these principles and methods will be its ability to access data. Whilst it has extensive powers under section 362AS of the Media Act to require TSS to provide – and, importantly, to obtain or generate – information, Ofcom itself notes in the consultation the difficulties in collecting sufficiently granular and market-wide information. TSS responding to this consultation should give thought to whether Ofcom’s proposed approach to the data conundrum is feasible.

The consultation closes at 5pm on 5 February 2025, and can be accessed here.